Subparagraphs 98.20(o) to (y)
19Mr Blackburn SC has made complaint in respect of what is set out in particulars 98.20 (o) to (y) of the defence. Subparagraph 98.20 of the defence is entitled "Mismanagement by the Plaintiff". The part that the complaint is made of is entitled "Mismanagement of IRMRC [NSW Injury Risk Management Research Centre] and Mary Potter-Forbes' Work".
20This arises because one of the imputations pleaded in the second amended statement of claim includes an allegation that the plaintiff was incompetent in his job as a director of the IRMRC. The University has, by its defence, sought to justify those imputations, if they are made out.
21In terms of the future progress of the proceedings, these parts of the pleadings warrant scrutiny. What is to be avoided is some sort of roving Royal Commission into every aspect of the management of the IRMRC, not just on grounds of whether it reveals the plaintiff acted honestly, but also matters affecting competence. Just as with allegations of dishonesty, some degree of precision is required about allegations of incompetence so as to enable the trial judge to manage the hearing effectively.
22Ultimately, Mr Blackburn SC's submission was that this part of the defence should be struck out.
23The defence recites various things that were said to have been found by a review of the IRMRC that was conducted by an accounting firm. The particulars suggest that some trenchant criticisms were made of a member of senior staff within the IRMRC whom it was said was appointed by the plaintiff and reported to the plaintiff. The particulars allege the plaintiff was responsible for her supervision.
24One difficulty with the pleading can be identified at the outset. Subparagraph 98.20(y) alleges that:
"In the premises, the plaintiff did not adequately manage the finances of the IRMRC and permitted fund money to be misused."
25The reference to the "premises" must be to those parts of the defence that precede it. There is nothing that precedes that part of the defence which could support the allegation that the plaintiff "permitted fund money to be misused". Although I accept, as Mr Sibtain submitted, that this was not intended to convey an allegation that the plaintiff consciously allowed such money to be misused, in my view, that is the only sensible reading. Accordingly, even if it were not for the view that I was to form about the balance of this part of the pleading, that part of 98.20(y) would be struck out.
26The broader complaint concerns the paragraph that precedes this, namely 98.20(x). It recites that, "[I]n the circumstances", the plaintiff:
"(i) failed to prevent [the senior manager] from misusing the funds of the IRMRC.
(ii) failed to adequately supervise [the senior manager].
(iii) relied too heavily upon [the senior manager] for operational information and the financial management of the IRMRC.
(iv) ought to have taken further steps to familiarise himself with the nature of the financial management, relationship and dynamics of the IRMRC before deciding to place such heavy reliance upon [the senior manager]."
27The difficulty with the second, third and fourth matters in these allegations is that the "circumstances" that are referred to - that is, the facts, matters and circumstances that precede this in the pleading - do not enable the plaintiff to know, for example, what steps he should have taken to "adequately supervise" the senior manager, what level of reliance was appropriate and what was not in respect of the senior manager, and what further steps he should have taken to familiarise himself with the nature of the financial management.
28It might be said that these are all the sort of matters that could be identified with the provision of further particulars. However, in the context where this form of allegation is such that, in my view, it has a significant potential to cause real problems at the hearing, I think the only appropriate course is that the relevant part of the pleading be struck out with a view to the plaintiff identifying and pleading with better precision what it is said that proper management involved.
29In particular, the revised pleadings will have to involve more than simply reciting what the accounting firm's report found. Instead, the University will need to make positive allegations as to what were the management difficulties at the IRMRC, what were the responsibilities of the plaintiff, and what it is said he should have done but did not.
30In relation to the first allegation, namely that the plaintiff failed to prevent the senior manager from misusing the funds of the IRMRC, the allegations that preceded could be said to support this. There is at least one paragraph that identifies what the alleged misuse of the funds was. An earlier paragraph recites the plaintiff's responsibility for the misuser's supervision, although the precise steps he should have taken to prevent that occurring are not identified.
31Nevertheless, given that I will ultimately allow the first defendant leave to re-plead these allegations, and bearing in mind what was submitted by counsel on their behalf, I think the better course is to strike out the entirety of (o) to (y).
32Accordingly, subparagraphs (o) to (y) of paragraph 98.20 of the defence are struck out. I will direct that any further pleading addressing those matters be filed and served by 13 September 2013.